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James Alan Bush 2967 Sherbrooke Way San Jose, California 95127 (408) 569-1634 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAN JOSE DIVISION

Yvonne Ly, et al., Plaintiffs, v. James Alan Bush, Defendant.

Case No. 1-13-CV-242652 MEMORANDA IN SUPPORT OF DEMURRER TO COMPLAINT

I.

AUTHORITY FOR DEMURRER A. California Code Civ. Proc. 430.10(e) permits a party to object to a pleading, by demurrer, if [t]he pleading does not state facts sufcient to constitute a cause of action.

II.

PLAINTIFF FAILED TO ALLEGE SERVICE OF 30-DAY NOTICE, AND TERMINATED THE ALLEGED TENANCY WITHOUT HAVING PROVIDED NOTICE [CODE CIV. PROC. 430.10(e)] A. Plaintiff did not serve the requisite 30-day notice on the defendant. Therefore, the tenancy was not terminated [see Roberts v. Redlich (1952) 111 CA2d 566, 568, 2444 P2d 933; Kriz v. Taylor (1979) 92 CA3d 302, 313, 154 CR 824 (The expiration of a notice to quit is the act

MEMORANDA

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that terminates the tenancy for the purposes of rent)]; moreover, in his complaint, the plaintiff fails to allege that the required notice was served on the tenant and had expired [see Zucco v. Farullo (1918) 37 CA 562, 568, 174 P 929]. When an unlawful detainer action is based on the termination of a month-to-month tenancy, the complaint must allege (a) that written notice was served on the tenant declaring the tenancy terminated in 30 or 60 days, and (b) that 30 or 60 days has passed since service of the notice [Civ. Code 1946, 1946.1; Code Civ. Proc. 1161(1), 1166(a)(2)]. The termination notice requirements must be strictly following in unlawful detainer actions. The statutory situations in which the remedy of unlawful detainer is available are exclusive, and the statutory procedure must be strictly followed [Greene v. Municipal Court (1975) 51 CA3d 446, 450, 124 CR 139 (Citation)]. As more fully explained in the declaration of the defendant, attached to this motion, proper service of a notice of termination of tenancy has not been achieved on the defendant. A landlord is required by law to terminate a periodic tenancy by serving a termination notice on the tenant that gives a notice period that is at least as long as the term of the lease, i.e., 30 days [CCP 1946]. Civil Code 1946 provides that a tenancy for an unspecied term (usually month-to-month) is deemed to be renewed automatically as provided for in Civil Code 1946.1, which states that tenancy is deemed to be renewed each month unless one of the parties gives written notice to the other of his intention to terminate same. Although the plaintiffs gave a termination notice to the defendant for February, 2013, by accepting a subsequent agreement to extend the tenancy into March, 2013, the plaintiffs waived their right MEMORANDA PAGE 2 OF 4

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to terminate the tenancy under that notice. Because the termination notice was rescinded by the agreement, both implicitly and explicitly, and because the plaintiffs agreed to accept rent for March, 2013, the defendant detrimentally relied on the extension. A judgment entered without jurisdiction over the party subject to that judgment is void [Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Service of summons is a jurisdictional requirement, without which the court has no jurisdiction in the action [Chaplin v. Superior Court (1927) 81 CA 367, 253 P 954; CCP 1917]. In an unlawful detainer action, it is of particular importance that proper service of summons be achieved [Greene v. Municipal Court (1975) 51 CA3d D446, 124 CR 139]. Defective service of summons is not service and confers no jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163 P 890; Sternbeck v. Buck (1957)148 CA2d 829, 307 P2d 970]. Mere knowledge of the action, absent voluntary appearance by the party, is not sufcient for the court to assert its jurisdiction over the party [Coulston v. Cooper (1966) 245 CA2d 866, 54 CR 302; Varra v. Superior Court (1960) 181 CA2d 12, 4 CR 920; see CCP 415.10-415.50]. California CCP 415.10-415.50 govern the methods by which a summons and complaint may be served on a defendant in an unlawful detainer action, and states, in relevant part, that a summons and complaint may be served only after proper notice of termination of tenancy was given.

26 III. PREMATURE FILING OF COMPLAINT [CODE CIV. PROC. 430.10(e)] 27 28 A. An unlawful detainer cause of action arises on expiration of the period required to be specied in the termination notice [Code Civ. MEMORANDA PAGE 3 OF 4

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Proc. 1161(2)-(5)]. A 30-day notice terminating a tenancy presumably requires the tenant to vacate within the 30 days. Plaintiff, having agreed in February, 2013, to an extension of the lease up to and including March, 2013, led the complaint on March 13th, 2013, without having rst issued the requisite notice for termination of tenancy. PRAYER FOR RELIEF

7 WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant prays that this demurrer 8 be sustained without leave to amend, and that Plaintiffs take nothing by reason of 9 their complaint. 10 Dated: April 4th, 2013 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDA James Alan Bush Defendant in pro per // // // // // // // // // // // // // PAGE 4 OF 4 Respectfully submitted,